Terms of Service

1. SERVICES

1. 1Access and Use of Services.  Subject to User’s ongoing compliance with this Agreement, Nenu grants User a non-exclusive, non-transferable right, during the Term, to access and use the Services solely for User’s personal, non-commercial purposes, and solely in accordance with the published documentation for the Services (“Documentation”).

1. 2Accounts.  As part of the set-up process, User may be asked to create an account on the Services for itself (an “Account”) and provide certain information as prompted in the account registration process.  User represents and warrants that: (i) all required Account registration information submitted is truthful and accurate; and (ii) User will maintain the accuracy of such information.  User is responsible for maintaining the confidentiality of all Account login information and is fully responsible for all activities that occur under User’s Account.  User will use reasonable efforts to prevent any unauthorized access or use of the Services and User agrees to immediately notify Nenu of any unauthorized use, or suspected unauthorized use, of the Accounts or any other breach of security.  Additionally, if there is unauthorized access or use by anyone who obtained access directly or indirectly through User , User will also take all steps reasonably necessary to terminate the unauthorized access or use and cooperate and assist with any actions taken by Nenu to remediate any issues resulting from, or related to, such unauthorized access or use.  Nenu will not be liable for any loss or damage arising from any unauthorized use of the Accounts or User’s failure to comply with the above requirements.

1. 3Authorized Users.  User will only permit access to the Services as follows: (i) if User is an individual, only User may access the Services; or (ii) if User is an entity, only User’s employees and contractors that are authorized by User to access the applicable Services solely for User’s internal business purposes (“Authorized Users”) may access the Services, provided that User shall remain liable for all acts and omissions of such users.  User is solely responsible for determining the level of access and privileges granted to its Authorized Users.  User will ensure its Authorized Users’ use of the Services is in compliance with the terms of this Agreement and User will be solely responsible for enforcing any of User’s internal policies regarding its Authorized Users’ use of the Services.

1. 4AI Functionality.  User acknowledges that the Services leverage artificial intelligence (“AI”) technology, including for the purpose of providing AI-powered [insights, learnings, recommendations, and information] (“AI Services”).  Due to the nature of AI technology, the output that the AI Services generate (“Output”) may be unpredictable, and may include inaccurate or harmful responses.  User is and will remain fully responsible and liable for the deployment of the AI Services for User’s use case and acknowledges that Nenu does not control how User deploys the AI Services.  Before using any Output, User is solely responsible for reviewing the Output for accuracy, safety, and compliance with applicable laws and acceptable use policies.  User assumes all responsibility for the Output.  All Output will be deemed to be “User Content” (defined below) that is owned by User; provided, however, that nothing in this Agreement will be deemed to restrict Nenu or the Services from providing the same or similar Output to any other user based on those independent user inputs.  User agrees that, where such notification or consent is required by applicable law, User will notify its Authorized Users of the use of the AI Services and/or obtain prior consent from such Authorized Users for the use of the AI Services (including where AI Services may process or use Authorized User’s personal data). User will at all times use the Services in compliance with applicable laws.  Without limiting the foregoing, User will remain responsible for ensuring that the Services are used by User in a manner that complies with laws applicable to automated profiling and automated decision-making about natural persons, and their requirements, such as, to the extent applicable, notice, transparency, and choice.  User will not use the Services for uses which would cause the Services to be considered "unacceptable risk" or "high-risk" AI systems as defined in the EU Regulation on Artificial Intelligence (EU AI Act), including Article 6 thereof; or constitute a ‘prohibited AI practice’ for the purposes of the EU AI Act, including Article 5 thereof.  Additionally, User will not use the Services as part of an automated decision-making process with legal or similarly significant effects. Nenu makes no representation that the use of any AI-enabled features will satisfy any legal requirements, including in compliance with employment and anti-discrimination laws.

1. 5User-provided Platforms.  To enable the full functionality of the Services, User may be required to (a) connect and integrate the Services with User’s own platforms, APIs or other accounts; or (b) otherwise direct Nenu to pull information from User’s platforms, accounts or other third-party sources (collectively, the “User-provided Platforms”), including by providing Nenu with keys or other credentials to access such User-provided Platforms.  As between the parties, User is solely responsible for determining if the User-provided Platforms are appropriate for use with the Services and for obtaining all necessary consents, permissions, approvals, or licenses for Nenu to access and use the User-provided Platforms.  Without limiting the foregoing, if User or an Authorized User provides Nenu with access to any third party application programming interfaces (“APIs”), API keys or other credentials for the purpose of connecting or integrating the Services with the User-provided Platforms, then User represents and warrants that it has obtained all necessary consents, permissions, approvals, and/or licenses to access and use, and permit Nenu to access and use, the same for the purpose of performing its obligations and exercising its rights under this Agreement.  User assumes all risks associated with use of any User-provided Platforms, and for any issues caused by User’s use of any third-party hardware, software, or services not provided by Nenu.  User will retain ownership of all of its rights in any data, information, materials and content that is stored in or accessible via such User-provided Platforms (the “User Data”).  User is solely responsible for such User Data, including for backing up User Data and ensuring any User Data is adequately encrypted or protected.  Nenu expressly disclaims all warranties or obligations with respect to storage or back up of User Data. Nenu does not endorse, warrant or support, is not responsible for, and disclaims all liability with respect to, such User-provided Platforms, including without limitation, the privacy or data security practices or other policies related to such User-provided Platforms.

1. 6Restrictions.  The Services are made available to User solely for its own personal, non-commercial use.  To the maximum extent permitted by applicable law, User shall not, directly or indirectly, and shall not authorize any person to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, structure, ideas, algorithms, or other hidden or non-public elements of, (ii) translate, adapt, publish, reproduce, distribute or modify, (iii) write or develop any program based upon or incorporate into any product or service User provides to a third party, (iv) use in any manner for the purpose of developing, distributing or making accessible products or services that are similar to or compete with, (v) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in any rights in, (vi) make available on a service bureau basis, as part of any third party’s product offering (regardless of hosting or distribution model) or otherwise access or use (or permit a third party to access and use) for the benefit of a third party, (vii) allow unauthorized persons to have access to, (viii) transmit unlawful, infringing or harmful data, content or code to or from, (ix) copy or replicate, (x) interfere with, disrupt, or create an undue burden on (or violate the regulations, policies or procedures of) any servers or networks connected to, (xi) attempt to gain unauthorized access to or interfere with any license key mechanism in or otherwise circumvent any mechanism intended to limit use of, (xii) alter or remove any trademarks or proprietary notices contained in or on, (xiii) engage in framing, mirroring, or otherwise simulating the appearance or function of, (xiv) perform or publish any performance or benchmark tests or analyses relating to, or (xv) otherwise use except as expressly permitted hereunder, in each case of (i) – (xv), in whole or in part, the Services (and all technology constituting or used to provide the Services) and all related Documentation (collectively, the “Nenu Technology”).

1. 7Free Trial. If Nenu has made a part of the Services (or any specific features or functionality thereof) available to User on a “free trial”, “pilot” or “pre-release” basis, then unless expressly indicated at time of registration or signup for our Services: (i) Nenu will be free to terminate or suspend User’s access thereto for any reason at any time and without liability of any kind, and (ii) notwithstanding any other provision of this Agreement, any such access to the applicable part of the Services is provided on an “AS IS” and “AS AVAILABLE” basis without warranty or support of any kind, express or implied.

1. 6Free Trial. If Nenu has made a part of the Services (or any specific features or functionality thereof) available to User on a “free trial”, “pilot” or “pre-release” basis, then unless expressly indicated at time of registration or signup for our Services: (i) Nenu will be free to terminate or suspend User’s access thereto for any reason at any time and without liability of any kind, and (ii) notwithstanding any other provision of this Agreement, any such access to the applicable part of the Services is provided on an “AS IS” and “AS AVAILABLE” basis without warranty or support of any kind, express or implied.

2. 1Term. This Agreement will start on the effective date of User’s registration for the Services and, unless terminated earlier in accordance with this Agreement, will continue until User’s access to and use of the Services is terminated or otherwise ceases in accordance with this Agreement.

2. 2Termination for Cause. Either party may terminate this Agreement in the event that: (i) the other party is in material breach of this Agreement, which is not cured within thirty (30) days after written notice of such breach, or (ii) the other party files for or is adjudicated bankrupt or suffers any other analogous event.

2. 3Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason, all access to the Nenu Technology will automatically terminate. All definitions and the following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.4, 1.5, 1.6, 1.7, 2.2, 2.3, 3.5, 3.6 and 4 through 7.

2. 4Suspension. Nenu reserves the right to suspend User and/or its Authorized Users’ access to the Services or any portion thereof at any time: (i) in the event that Nenu suspects that User or any of its Authorized Users is using the Services in violation of this Agreement or (ii) if Nenu otherwise believes such action is reasonable to comply with any applicable law, regulation or court order.

3. 1License from User.  As between the parties, User retains its ownership of all right, title and interest in and to any content, materials, or data that is uploaded, transmitted or otherwise provided to the Services by or on behalf of, or at the direction of, User or its Authorized Users, including User Data (collectively, the “User Content”), provided that Nenu is hereby granted a worldwide, non-exclusive, royalty-free, fully paid-up, transferable, sublicensable, irrevocable, right and license to: (i) use, copy, reproduce, modify, adapt, prepare derivative works from, translate, distribute, perform, and display the User Content (in whole or in part) for the purposes of operating and providing the Services to User, User’s Authorized Users, and if an Authorized User elects to share any User Content or make it available in an area of the Services that is generally accessible to other users of the Service, other users of the Services, and (ii) collect, access, process, and analyze log and other data related to the Services and the provision, use and performance and various aspects of the Services and related systems technologies and use such data to troubleshoot, improve and enhance the Services, and for other development, diagnostic, security and corrective purposes.  User hereby irrevocably waives (and agrees to cause to be waived) any claims and assertions of moral rights or attribution with respect to the User Content.  User may not represent or imply to others that the User Content is in any way provided, sponsored or endorsed by Nenu.  Although Nenu has no obligation to monitor User’s use of the Services, Nenu may do so and may prohibit any use of the Services it believes may be (or is alleged to be) in violation of this Agreement, applicable laws, or any acceptable use policies identified in the Services or any Documentation thereto.  Please remember that other users may be able to search for, see, use, modify and/or reproduce User Content that User or its Authorized Users submit to any area of the Services that is accessible to other users, and as such, User will be solely responsible for ensuring its Authorized Users comply with any of User’s internal policies regarding its Authorized Users’ use of, or provision of, User Content on the Services. 

3. 2User Content Restrictions; Acceptable Use Policy.  This section, and User’s use restrictions and obligations therein, is herein referred to as the acceptable use policy (“Acceptable Use Policy”).  The User Content made accessible on the Services, including but not limited to any data, models, content, text, and other materials that are collected, uploaded to, or otherwise made accessible to the Services by or on behalf of User or its Authorized Users are the sole responsibility of User.  This means that: (i) User, and not Nenu, is solely responsible for all User Content that is accessible through the Services, including its accuracy, completeness, and suitability, and (ii) other third party users, and not Nenu, are solely responsible for any content, materials or data that is uploaded, transmitted or otherwise provided to the Services by or on behalf of, or at the direction of, such third party users (“Third Party Content”).  User acknowledges that Nenu has no obligation to pre-screen User Content or Third Party Content, although Nenu reserves the right in its sole discretion to pre-screen, refuse or remove any User Content or Third Party Content from the Services, including if Nenu believes it violates this Agreement or is otherwise objectionable.  Since Nenu does not control User Content or Third Party Content, User acknowledges and agrees that Nenu is not responsible for any User Content or Third Party Content, whether provided by User, its Authorized Users, or by third party users.  Nenu makes no guarantees regarding the accuracy, currency, suitability, appropriateness, or quality of any User Content or Third Party Content.  User further agrees, represents, and warrants that: (a) the User Content will not contain any content or material that is illegal, or include any content and material that violates, infringes, or misappropriates any third party’s intellectual property rights, constitutes an invasion of privacy or misappropriation of publicity rights; (b) User and its Authorized Users will not use the Services or transmit User Content in a manner that is or could be harassing, abusive, tortious, threatening, harmful, harmful to minors in any way, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, indecent, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual; (c) the User Content will not contain any computer code, programs, or programming devices that are designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, the operation of the Services or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Services to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with operation, (d) User and its Authorized Users will not send through the Services unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise, (e) User and its Authorized Users will not use the Services to harvest, collect, gather or assemble information or data regarding third party users, including e-mail addresses, without their consent, (f) User and its Authorized Users will not interfere with, disrupt, or create an undue burden on servers or networks connected to the Services, or violate the regulations, policies or procedures of such networks, (g) User and its Authorized Users will not attempt to gain unauthorized access to the Services (or to other computer systems or networks connected to or used together with the Services), whether through password mining or any other means, (h) User and its Authorized Users will not harass or interfere with any third party users use and enjoyment of the Services, (i) User and its Authorized Users will not use software or automated agents or scripts to produce multiple Accounts on the Services, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Services, (j) User and its Authorized Users will not provide or make accessible on the Services any User Content that is otherwise objectionable to Nenu in its sole discretion, (k) User and Authorized Users will not provide any User Content that contains Sensitive Information to the Services.  As used herein, “Sensitive Information” means: (A) individually identifiable health information or protected health information as those terms are defined by the Health Insurance Portability and Accountability Act (“HIPAA”) and its implementing regulations; (B) credit, debit or other payment card data subject to the Payment Card Industry Data Security Standard (“PCI DSS”); (C) Social Security numbers, Social insurance numbers, passport numbers, driver’s license numbers or other government-issued identification numbers; or (D) financial account numbers.  User acknowledges that Nenu is not a business associate (as that term is defined under HIPAA) or a payment card processor.  User acknowledges that the Services are not designed to be HIPAA or PCI DSS compliant.  Nenu reserves the right (but has no obligation) to review, refuse and/or remove any User Content in its sole discretion, and to investigate and/or take appropriate action against User in Nenu’s sole discretion if User violates the Acceptable Use Policy or any other provision of this Agreement or otherwise creates liability for Nenu or any other person.  Such appropriate action may include removing or modifying the User Content, terminating the Account in accordance with this Agreement, and/or reporting User or its Authorized Users to law enforcement authorities. 

3. 3Data Privacy and Security.  Nenu will process personal information in User Content only as is reasonably necessary to provide the Services and as otherwise set forth in the Agreement.  Nenu will implement and maintain commercially reasonable technical and organizational measures designed to protect such personal information against accidental, unauthorized, or unlawful destruction, loss, alteration, or disclosure.  User shall ensure (and is solely responsible for ensuring) that it has given such notices to and obtained such consents and permissions from all relevant third parties (including, without limitation, Authorized Users), and has reserved all rights, in each case, as may be required under applicable law or otherwise for Nenu to process User Content (including personal information) to provide the Services as contemplated by the Agreement. User is solely responsible for ensuring that its use of the Services complies with all laws and regulations relating to privacy, data security, and AI, including with respect to input data and Output generated and used.   You represent and warrant that you are not a “covered person” as defined under the Preventing Access to U.S. Sensitive Personal Data and Government-Related Data by Countries of Concern or Covered Persons (“Bulk Sensitive Personal Data Rule”), 28 C.F.R. part 202, et. seq. During the Agreement’s term, you shall not (i) become a “covered person” as defined by the Bulk Sensitive Personal Data Rule, or (ii) sell, license access to, transfer in return for valuable consideration, or otherwise engage in similar transfers of, the data obtained from the Services to “covered persons” or “countries of concern” as those two terms are defined in the Bulk Sensitive Personal Data Rule.

3. 4User Content Data Storage. User acknowledges that Nenu does not offer a back-up or archiving of the Services and any User Content therein, and that User assumes all risks associated with access and use of the User Content with the Services. For clarity, Nenu is not obligated to backup or store any of the User Content. Nenu expressly disclaims all other obligations with respect to storage of such User Content. Without limiting the foregoing, Nenu reserves the right to delete any and all User Content in its discretion in the event that User terminates the Service.

3. 5Ownership. Except for the limited rights granted in this Agreement, Nenu hereby retains all right, title and interest, including all intellectual property rights, in and to the Nenu Technology. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY NENU.

3. 6Feedback. User hereby grants to Nenu and its affiliates a worldwide, irrevocable, perpetual, sublicensable, royalty-free right and license to use, modify, transmit, reproduce, make derivative works of, disclose and exploit without restriction all feedback and suggestions provided by User and its Authorized Users (collectively, “Feedback”), including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features, regarding the Nenu Technology or any portion thereof.

4. INDEMNIFICATION

4. 1User shall indemnify, defend and hold harmless Nenu and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, “Nenu Entities”) from and against any third party claim, loss, or damage (including reasonable attorney’s fees), arising out of or relating to: (i) an allegation that the use by or on behalf of Nenu in accordance with this Agreement of any of the User Content and/or User-provided Platforms infringes or misappropriates any third party’s rights or violates applicable laws, (ii) the use of the Services in combination with material, content, software, technology, products, data or services not developed and provided by Nenu, including without limitation the User Systems, Third Party Content, and User Content, (iii) User’s or its Authorized Users’ failure to use the Services in accordance with this Agreement or applicable laws or regulations or otherwise comply with the terms of this Agreement, (iv) any User Content, or (v) User’s violation or alleged violation of Sections 1.4, 1.5 or 1.6 or the Acceptable Use Policy found in Section 4.2.  Nenu will provide User with: (a) prompt written notice of; (b) control over the defense and settlement of; and (c) all information and assistance reasonably requested by User in connection with the defense or settlement of, any such claim.  Notwithstanding the foregoing, Nenu will at all times have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at Nenu’s own expense. 

5. WARRANTIES; DISCLAIMER; LIMITATION OF LIABILITY  

5. 1User Warranties.  User represents, warrants, and covenants that it has and will maintain during the term of the Agreement all necessary right, title, interest, authorizations, and permissions to: (i) grant rights to, access, provide, provide access to, or request Nenu access, disclose, or submit, any User Content and/or Feedback, and (ii) access and permit Nenu to access on User’s behalf any User-provided Platforms and User Content, as applicable. 

5. 2Disclaimer.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (i) THE NENU TECHNOLOGY AND ANY OTHER MATERIALS AND CONTENT MADE AVAILABLE BY NENU OR THROUGH THE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS; (ii) NENU ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, RELATING TO THE NENU TECHNOLOGY AND ANY OTHER MATERIALS AND CONTENT MADE AVAILABLE BY NENU OR THROUGH THE SERVICES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING, USAGE, TRADE OR RELIANCE.  NENU ENTITIES DO NOT WARRANT ANY THIRD PARTY CONTENT OR FUNCTIONALITY.  TO THE FULLEST EXTENT PERMITTED BY LAW, NENU ENTITIES DO NOT WARRANT THAT THE NENU TECHNOLOGY AND ANY OTHER MATERIALS, RECOMMENDATIONS OR CONTENT MADE AVAILABLE THROUGH THE NENU TECHNOLOGY (INCLUDING THE SERVICES) WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER OR ITS AUTHORIZED USERS FROM THE NENU TECHNOLOGY (INCLUDING THE SERVICES) WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT.  AS BETWEEN THE PARTIES, USER IS SOLELY RESPONSIBLE FOR REVIEWING AND DETERMINING WHETHER OR NOT, OR HOW TO, USE ANY OUTPUT, CONTENT, MATERIALS OR DATA THAT IS MADE AVAILABLE VIA THE SERVICES.  WITHOUT LIMITING THE FOREGOING, AS BETWEEN THE PARTIES, USER IS SOLELY RESPONSIBLE FOR, AND NENU WILL HAVE NO LIABILITY FOR, ANY DECISIONS MADE BY USER BASED UPON ANY OUTPUT, CONTENT, MATERIALS OR DATA THAT IS PROVIDED BY THE SERVICES, REGARDLESS OF ANY RESULTS OR OUTPUT GENERATED BY THE SERVICES.

TO THE FULLEST EXTENT PERMITTED BY LAW, NENU ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM USER’S OR ITS AUTHORIZED USERS’ USE OF OR ACCESS TO THE NENU TECHNOLOGY OR ANY OTHER OUTPUT, MATERIALS, DATA OR CONTENT THAT IS MADE AVAILABLE BY NENU OR THROUGH THE SERVICES.  USER UNDERSTANDS AND AGREES THAT USER’S AND ITS AUTHORIZED USERS’ USE OF THE NENU TECHNOLOGY (INCLUDING THE SERVICES) AND ANY OUTPUT, CONTENT, DATA OR MATERIALS THAT ARE ACCESSED, DOWNLOADED, OR OTHERWISE OBTAINED FROM NENU OR THROUGH THE NENU TECHNOLOGY, INCLUDING WITHOUT LIMITATION ANY USER-PROVIDED PLATFORMS, IS AT USER’S OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, NENU ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO USER’S PROPERTY, INCLUDING ANY USER-PROVIDED PLATFORMS USED IN CONNECTION WITH THE NENU TECHNOLOGY OR ANY LOSS OF DATA OR USER CONTENT.  

5. 3Limitation of Liability.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NENU ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL NENU ENTITIES’ TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT PAID BY USER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE.  EXCEPT FOR ANY ACTION BY NENU FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN TWELVE (12) MONTHS AFTER THE DATE THE CLAIM AROSE.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS.  THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

6. ARBITRATION AGREEMENT

6. 1Notice.  PLEASE READ THIS SECTION (THE “ARBITRATION AGREEMENT”) CAREFULLY.  IT IS PART OF USER’S CONTRACT WITH NENU AND AFFECTS USER’S RIGHTS.  IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.

6. 2Applicability of Arbitration Agreement.  Subject to the terms of this Arbitration Agreement, User and Nenu agree that any dispute, claim, disagreements arising out of or relating in any way to User’s access to or use of the Services, any communications User receives, any products sold or distributed through the Services or this Agreement and prior versions of this Agreement, including claims and disputes that arose between User and Nenu before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) User and Nenu may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) User or Nenu may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents).  For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.

6. 3Informal Dispute Resolution. There might be instances when a Dispute arises between User and Nenu. If that occurs, Nenu is committed to working with User to reach a reasonable resolution. User and Nenu agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). User and Nenu therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), User and Nenu will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If User is represented by counsel, User’s counsel may participate in the conference, but you will also participate in the conference.

The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties.  Notice to Nenu that User intends to initiate an Informal Dispute Resolution Conference should be sent by email to legal@nenu.co.  The Notice must include: (1) User’s name, telephone number, mailing address, e‐mail address associated with User’s Account (if User has one); (2) the name, telephone number, mailing address and e‐mail address of User’s counsel, if any; and (3) a description of User’s Dispute.

The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree.  In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute.  Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration.  The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.

6. 4Waiver of Jury Trial.  USER AND NENU HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY.  User and Nenu are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 5.2 (Applicability of Arbitration Agreement).  There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.

6. 5Waiver of Class and Other Non-Individualized Relief.  USER AND NENU AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 5.10 (BATCH ARBITRATION), EACH OF THE PARTIES MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS.  ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.  Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim.  Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 5.10 (Batch Arbitration).  Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), User and Nenu agree that the particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of Delaware.  All other Disputes shall be arbitrated or litigated in small claims court.  This section does not prevent you or Nenu from participating in a class-wide settlement of claims.

6. 6Rules and Forum.  This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings.  If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after User’s receipt of Notice, User and Nenu agree that either party shall have the right to finally resolve the Dispute through binding arbitration.  The arbitration will be administered by the American Arbitration Association (“AAA”), in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this section of this Arbitration Agreement.  The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.

A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”).  The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the Account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.

If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address.  Such counsel must also sign the Request.  By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.

Unless User and Nenu otherwise agree, or the Batch Arbitration process discussed in Section 5.10 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where User resides or New Castle, Delaware.  Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration.  If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum.  User’s responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.

User and Nenu agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.

6. 7Arbitrator.  The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of Delaware and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators.  If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 5.10 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.

6. 8Authority of Arbitrator.  The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 5.5 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 5.5 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 5.5 (Waiver of Class and Other Non-Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 5.10 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator.  The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 5.10 (Batch Arbitration).  The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute.  The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded.  The award of the arbitrator is final and binding upon you and us.  Judgment on the arbitration award may be entered in any court having jurisdiction.

6. 9Attorneys’ Fees and Costs.  The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).  If User or Nenu need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration.  The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.

6. 10Batch Arbitration.  To increase the efficiency of administration and resolution of arbitrations, User and Nenu agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Nenu by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall: (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief.  To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”).  In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly.  The Administrative Arbitrator’s fees shall be paid by Nenu.

All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief.  To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”).  In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly.  The Administrative Arbitrator’s fees shall be paid by Nenu.

User and Nenu agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.

This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.

6. 1130-Day Right to Opt Out. User shall have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of User’s decision to opt out to: legal@nenu.co, within thirty (30) days after first becoming subject to this Arbitration Agreement.  User notice must include User’s name and address, the email address associated with User’s Account (if User has one), and an unequivocal statement that User wants to opt out of this Arbitration Agreement.  If User opts out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to User.  Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that User may currently have, or may enter in the future, with Nenu.

6. 12Invalidity; Expiration.  Except as provided in Section 5.5 (Waiver of Class or Other Non-Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.  User further agrees that any Dispute that User has with Nenu as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred.  Likewise, User agrees that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.

6. 13Modification.  Notwithstanding any provision in this Agreement to the contrary, Nenu agrees that if Nenu makes any future material change to this Arbitration Agreement, Nenu will notify User.  Unless User rejects the change within thirty (30) days of such change becoming effective by writing to Nenu at legal@nenu.co, User’s continued use of the Services, including the acceptance of products and services offered on or through the Services following the posting of changes to this Arbitration Agreement constitutes User’s acceptance of any such changes.  Changes to this Arbitration Agreement do not provide User with a new opportunity to opt out of the Arbitration Agreement if User had previously agreed to a version of this Agreement and did not validly opt out of arbitration.  If User rejects any change or update to this Arbitration Agreement, and User was bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to User’s access to or use of the Services, any communications User receives, any products sold or distributed through the Services or this Agreement, the provisions of this Arbitration Agreement as of the date User first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect.  Nenu will continue to honor any valid opt outs of the Arbitration Agreement that User had made to a prior version of this Agreement.

7. ARBITRATION AGREEMENT

7. 1Assignment.  Except as expressly set forth in this Agreement, neither party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that Nenu may assign this Agreement without the written consent of User as part of the conversion to a corporation or other corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

7. 2Force Majeure.  Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.  The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.

7. 3Governing Law.  This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of California, consistent with the Federal Arbitration Act, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

7. 4Modifications to this Agreement.  Nenu may modify this Agreement from time to time by giving notice to User through Nenu’s online user interfaces, by sending User an email to an e-mail address associated with User’s Account, by prominently posting notice of the changes on the Services, or in any other manner permitted by this Agreement. In the event that the last e-mail address that User has provided is not valid, or for any reason is not capable of delivering to User the notice described above, Nenu’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes to this Agreement described in the notice. Unless a shorter period is specified by Nenu (e.g., due to changes in the law or exigent circumstances), the modifications become effective thirty (30) days after notice is provided to User. If Nenu specifies that the modifications to this Agreement will take effect prior to the expiration of such thirty (30) day period and User notifies Nenu in writing at legal@nenu.co of User’s objection to the modifications within thirty (30) days after the date of such notice, Nenu (at its option and as User’s exclusive remedy) will either: (i) permit User to continue under the existing version of the Agreement for a period of thirty (30) days following User's objection (after which time the modified Agreement will go into effect), or (ii) allow User to terminate this Agreement. User may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Services, and, in any event, continued use of the Services after the modified version of this Agreement becomes effective will constitute User’s acceptance of such modified version.

7. 5Export Controls; Government Rights.  User agrees that User will not, and will ensure that its Authorized Users will not, directly or indirectly, export or re-export, or knowingly permit the export or re-export of, the Nenu Technology or any technical information about the Nenu Technology to any country for which such export or re-export is restricted by any applicable U.S. regulation or statute, without the prior written consent, if required, of the Bureau of Export Administration of the U.S. Department of Commerce, or such other government entity as may have jurisdiction over such export or re-export.  User hereby represents and warrants that: (i) User is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and (ii) User is not listed on any U.S. Government list of prohibited or restricted parties.  The Nenu Technology is deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable.  Any use, modification, reproduction release, performance, display or disclosure of the software and accompanying documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

7. 6Miscellaneous.  This Agreement is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter.  No terms of any purchase order, acknowledgement or other form provided by User will modify this Agreement, regardless of any failure of Nenu to object to such terms.  Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof.  Except as set forth in Section 8.4, this Agreement may only be amended by a writing signed by both parties.  This Agreement may be executed in counterparts.  The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement.  Any required notice shall be given in writing by customary means with receipt confirmed.  Notices to User shall be sent to the email address set forth on the applicable registration information or profile page.  Notices to Nenu shall be given to legal@nenu.co.  Notices will be deemed to have been given at the time of actual delivery in person, one (1) day after delivery to an overnight courier service, or three (3) days after deposit in the mail.  The relationship between the parties shall be that of independent contractors.  Nenu may use subcontractors.  Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement.  Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.